Excerpt: - .....in this motion, conceded that the subject-matter in both suits is identical although in the gorakhpore suit it is said that the transactions between the parties were by way of loans and money-lending.4. learned counsel who appeared on behalf of the applicants conceded that as the gorakhpore court is not subordinate to the high court of judicature in calcutta, the prayer seeking that the suit in the gorakhpore court should be stayed, cannot be insisted upon, and he relied upon the second prayer, namely, that defendant 1 should be restrained from proceeding with the suit in the gorakhpore court. the grounds upon which the application is made are that the proceeding in the gorakhpore court is vexatious and has been brought solely to harass and embarrass the plaintiffs, that all the.....

Judgment:ORDER

Gentle, J.

1. This is a notice of motion taken out by the plaintiff in a suit in this Court seeking one of two alternative orders (1) that a suit in the Court of the District Munsif of Gorakhpur be stayed until disposal of this suit; (2) that the defendant in this suit, who is the plaintiff in the suit in the Gorakhpur Court, should be restrained by an injunction from continuing his suit until the disposal of this one.

2. The plaintiffs in the suit in this Court are members of a joint Hindu family represented by the karta who is plaintiff 1; the defendants are also alleged to be a joint family of which defendant 1 is the karta. The plaint states that for many years the plaintiffs carried on business in Calcutta as commission agents, and as such acted for and on behalf of the defendants, principally in the sale of various commodities such as wheat and linseed and to some extent goods such as jute and other bags were purchased by the plaintiffs for and on behalf of the defendants. The accounts were examined from time to time, the last occasion being on 30th October 1940 when it was ascertained that a sum of Rs. 14,862-2-6 was due from the defendants to the plaintiffs. The defendants, it is alleged, wrote to the plaintiffs on 18th February 1941 acknowledging the correctness of the amount due from them to the plaintiffs of which a sum of Rs. 129 has been paid. After the preliminary letter by the plaintiffs' attorney before action was sent to the defendants on 18th April 1941 the present suit was filed claiming a sum of Rs. 15,350 including some interest. In the written statement filed by defendant 1 the nature of the dealings between the parties is not disputed. It is, however, pleaded that the charges made by the plaintiff are excessive and that credit has not been given for moneys paid towards the indebtedness. Further it is alleged that the defendants are entitled to the benefits of the U.P. Agriculturists Relief Act, and as such the indebtedness will be very greatly reduced upon the provisions of that statute being applied.

3. Five days after the suit was filed, according to the statements made in the applicant's affidavit, defendant 1 or the defendants (it matters not which) purported to alienate their immovable properties valued at about Rs. 40,000 for a sum of Rs. 16,682-8-0 the alienation being in favour of a near relative. The writ of summons in this suit was served on the defendants on 21st August 1941. On 22nd October following, defendant 1 filed a suit in the District Munsif's Court at Gorakhpore against the plaintiffs in this suit as the defendants. In the plaint it is alleged that defendant 1 in this suit is an agriculturist and is entitled to the benefits of the Agriculturists' Belief Act as prevailing in the United Provinces, and the plaint goes on to allege that between the parties there were money-lending dealings over a period of a number of years, and that if proper accounts were taken between the parties and the provisions of the Agriculturists' Relief Act were applied, then the defendants in this suit in this Court would be either not indebted at all, or their indebtedness would be very greatly lessened. Learned Counsel who appeared for the respondents in this motion, conceded that the subject-matter in both suits is identical although in the Gorakhpore suit it is said that the transactions between the parties were by way of loans and money-lending.

4. Learned Counsel who appeared on behalf of the applicants conceded that as the Gorakhpore Court is not subordinate to the High Court of Judicature in Calcutta, the prayer seeking that the suit in the Gorakhpore Court should be stayed, cannot be insisted upon, and he relied upon the second prayer, namely, that defendant 1 should be restrained from proceeding with the suit in the Gorakhpore Court. The grounds upon which the application is made are that the proceeding in the Gorakhpore Court is vexatious and has been brought solely to harass and embarrass the plaintiffs, that all the transactions between the parties, covering the whole period of their business connexion, took place in Calcutta, all the books are within the city and it would be most inconvenient and harassing for them to have to take all their documents and all their evidence to the Gorakhpore Court, and further, that the proceeding in the local Court is not one of a bona fide nature. So far as the balance of convenience and the like is concerned, I am inclined to consider that the plaintiff-applicants are justified in the position which has been put forward, save that the claim by the defendants that they are entitled to the benefits of the U.P. Agriculturists' Relief Act which is sought to be obtained in the written statement in the suit in this Court, is a relief which it is doubtful can be obtained in this Court. I am, of course, not expressing a view one way or the other upon that, nor whether the defendants in the suit are in fact entitled to the privileges which the United Provinces statute provides.

5. The main argument which has been directed on behalf of the respondent by learned Counsel is that inasmuch as defendant 1, who is the sole respondent in this motion, is not within the jurisdiction of this Court, the relief which is now sought to be obtained, cannot be granted. The Court is asked to grant an injunction and no Court will pass any order which is ineffectual, and to make the order effective, the respondent must be within its jurisdiction in order that the Court can enforce its order against him or take the necessary steps which would follow upon its order being disobeyed. There are some conflicting decisions upon this matter. In Jumna Dass v. Haracharan Dass ('11) 38 Cal. 405, Mungle Chand v. Gopal Ram ('07) 34 Cal. 101 and Vulcan Iron Works v. Bishumbhur Prosad ('09) 36 Cal. 233 it appears to be emphasized that an order by this Court of the nature which is now sought to be obtained, cannot be granted unless the person against whom the order is to be enforced is within the jurisdiction, and the view appears to be expressed that he should reside within the jurisdiction. These three cases were pronounced in this Court separately by three learned Judges, Sale, Steven and Fletcher JJ. There are three contrary authorities, all of which were given by Lort. Williams J. : A. Milton & Co. v. Ojha Automobile Engineering Co. : AIR1931Cal279 , Naskarpara Jute Mills Co. Ltd. v. Nirmal Kumar Jain : AIR1941Cal434 and Bhagat Singh v. Jagbir Sawhney : AIR1941Cal670 . In those decisions the learned Judge distinguishes between the position of the Courts in England qua a foreign Court, and the position in British India between the Court of one province and the Court of another province. I am informed by learned Counsel for the respondents that the decision in Bhagat Singh v. Jagbir Sawhney : AIR1941Cal670 was carried to the appellate Court and after some considerable time had been devoted to the appeal, the matter was settled. Naturally, there is no record of the Court or the reasons for which the settlement was effected. I have to decide which line of authorities I should follow. The applicants before me can apply, if they are so minded, to the Gorakhpore Court under the provisions of Section 10, Civil P.C., which provides that no Court shall proceed with the trial of any suit in which the matter in issue is directly or substantially in issue in a previously instituted suit between the same parties. That application has not yet been made. I feel constrained that I should follow the three first-mentioned decisions to which I have referred and not those which were pronounced by Lort-Williams J.A. Court will never grant relief or pass an order which it cannot itself enforce, and since the defendant-respondent is not within the jurisdiction of this Court, then the direct enforcement by this Court of any order restraining the prosecution of the Gorakhpore suit could not be attained, and a Court will never grant an ineffectual order. For these reasons, I come to the conclusion that the relief sought in this motion cannot be granted and it must therefore be dismissed. On the whole I come to the conclusion that the costs will be costs in the cause.